Response to the Protecting the Rights of Older Australians ... · elder abuse usually refers to...
Transcript of Response to the Protecting the Rights of Older Australians ... · elder abuse usually refers to...
Submission to the Australian Law Reform Commission
Response to the Protecting the Rights of Older Australians from Abuse Inquiry (Elder Abuse Discussion Paper 83)
March 2017
Prepared by COTA Australia
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Submission to the Australian Law Reform Commission
Response to the Protecting the Rights of Older Australians from Abuse Inquiry
(Elder Abuse Discussion Paper 83)
March 2017
Authorised by:
Ian Yates AM Chief Executive [email protected] Prepared by:
Susan McGrath National Policy Manager [email protected]
Anne Meuronen Policy Officer [email protected]
COTA Australia Suite 9, 16 National Circuit Barton ACT 2600 02 61549740
www.cota.org.au
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COTA Australia
COTA Australia is the national consumer peak body for older Australians. Its members are the
State and Territory COTAs (Councils on the Ageing) in each of the eight States and Territories of
Australia. The State and Territory COTAs have around 30,000 individual members and more
than 1,000 seniors’ organisation members, which jointly represent over 500,000 older
Australians.
COTA Australia’s focus is on national policy issues from the perspective of older people as
citizens and consumers and we seek to promote, improve and protect the circumstances and
wellbeing of older people in Australia. Information about, and the views of, our constituents
and members are gathered through a wide variety of consultative and engagement mechanisms
and processes.
This contribution was prepared by COTA Australia with input from the State and Territory
COTAs.
We also note that Senior’s Rights Victoria (SRV), an arm of COTA Victoria, will make separate
submission to the Inquiry given its deep expertise as a service provider in the field of elder
abuse prevention and response.
Introduction
COTA welcomes the opportunity to comment on the Australian Law Reform Commission’s
(ALRC) Elder Abuse Discussion Paper 83. The Commission’s Inquiry into Protecting the Rights of
Older Australians from Abuse is a critically important initiative. We believe that the Inquiry will
lay the ground for and give greater impetus to an overdue national response to law reform,
service delivery and cultural change to protect older people from elder abuse.
COTA supports the intent of all the Proposals in the Discussion Paper. We acknowledge the
comprehensive nature and scope of Proposals and the value of the supporting discussion and
evidence. We strongly support the overall approach in the Discussion Paper to strengthening
protections against elder abuse.
In our brief contribution below we:
make comment on the crucial issue of defining elder abuse;
identify Proposals we consider to be particularly important and urgent to implement;
identify what we consider to be gaps in coverage of the Proposals; and
offer additional comments on selected Proposals.
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Defining Elder Abuse
COTA recognises the complexity of defining elder abuse. Nonetheless, the definition is of
critical importance in the context of the Discussion Paper as it underpins the parameters of the
Proposals.
However, the Discussion Paper is not clear about the definition to be adopted; and especially
whether it should require the relationship to include an "expectation of trust." It contains a
discussion of the pros and cons of including this as an essential element and then goes on to
make recommendations about elder abuse, but significantly it does not recommend the
adoption of a specific definition.
The Discussion Paper considers that, to obtain a full picture of abuse of older persons, a broad
description of elder abuse needs to be used, like the WHO definition. This can serve a range of
purposes, including to gain a better understanding of the experiences of older Australians. The
WHO definition from the Toronto Declaration on the Global Prevention of Elder Abuse (2002) is:
“a single, or repeated act, or lack of appropriate action, occurring within any relationship
where there is an expectation of trust which causes harm or distress to an older person.”
The Discussion Paper goes on to suggest that elder abuse may be broadly defined as causing
harm to an older person, usually referring to deliberate harm (such as assaulting an older
person or stealing their money) but it may also be harm caused by neglect (such as failing to
feed or provide prescribed medications to an older person). The discussion acknowledges that
elder abuse usually refers to abuse by family, friends, carers and other people the older person
may trust, rather than abuse by strangers. Most elder abuse therefore has ‘similar features’ to
other forms of family violence.
Restricting the definition as in the WHO description of course leaves out abuse which occurs
outside the relationship of trust, of which the Discussion Paper contains examples.
COTA views the WHO definition as a reasonable starting point but would expect any prevalence
study (and related research) and a National Plan on Elder Abuse to investigate definitions and
parameters in greater depth through a consultative process.
Key Proposals
COTA highlights the following set of Proposals as critical to implement as soon as possible. In
our view these Proposals offer a solid legal and policy foundation within a comprehensive,
nationally consistent, evidence-based framework to guide future elder abuse prevention,
detection and response.
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Proposal 2–1
A National Plan to address elder abuse should be developed.
Proposal 2–2
A national prevalence study of elder abuse should be commissioned.
Proposal 5–1
A national online register of enduring documents, and court and tribunal orders for the
appointment of guardians and financial administrators, should be established.
Proposal 5–4
Enduring documents should be witnessed by two independent witnesses, one of whom
must be either a: (a) legal practitioner; (b) medical practitioner; (c) justice of the peace; (d)
registrar of the Local/Magistrates Court; or (e) police officer holding the rank of sergeant or
above.
Each witness should certify that: (a) the principal appeared to freely and voluntarily sign in
their presence; (b) the principal appeared to understand the nature of the document; and
(c) the enduring attorney or enduring guardian appeared to freely and voluntarily sign in
their presence.
Proposal 5–5
State and territory tribunals should be vested with the power to order that enduring
attorneys and enduring guardians or court and tribunal appointed guardians and financial
administrators pay compensation where the loss was caused by that person’s failure to
comply with their obligations under the relevant Act.
Proposal 7–1
The Code of Banking Practice should provide that banks will take reasonable steps to
prevent the financial abuse of older customers. The Code should give examples of such
reasonable steps, including training for staff, using software to identify suspicious
transactions and, in appropriate cases, reporting suspected abuse to the relevant
authorities.
Proposal 7–2
The Code of Banking Practice should increase the witnessing requirements for arrangements
that allow people to authorise third parties to access their bank accounts. For example, at
least two people should witness the customer sign the form giving authorisation, and
customers should sign a declaration stating that they understand the scope of the authority
and the additional risk of financial abuse.
Proposal 9–1
The Law Council of Australia, together with state and territory law societies, should review
the guidelines for legal practitioners in relation to the preparation and execution of wills and
other advance planning documents to ensure they cover matters such as: (a) common risk
factors associated with undue influence; (b) the importance of taking detailed instructions
from the person alone; (c) the importance of ensuring that the person understands the
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nature of the document and knows and approves of its contents, particularly in
circumstances where an unrelated person benefits; and (d) the need to keep detailed file
notes and make inquiries regarding previous wills and advance planning documents.
Proposal 10–1
The Department of Human Services (Cth) should develop an elder abuse strategy to prevent,
identify and respond to the abuse of older persons in contact with Centrelink.
Proposal 11–5
A national database should be established to record the outcome and status of employment
clearances
Proposal 11–6
Unregistered aged care workers who provide direct care should be subject to the planned
National Code of Conduct for Health Care Workers.
Gaps in Proposal coverage
COTA congratulates the ALRC for the comprehensiveness of the Discussion Paper. We make
comment though in regard to a small number of gaps in coverage.
1. In earlier submissions and statements on elder abuse COTA has called for a package of
measures to support prevention and response services nationally, including:
A small national secretariat to facilitate communications between elder abuse services,
enhance their capacity and service network activities;
A national Elder Abuse Awareness Campaign;
A national Hotline with a single phone number, through which older persons can access
advice and obtain professional support and assistance on their own behalf or others;
A National Elder Abuse Prevalence Study; and
Data collection on elder abuse, including the development and implementation of a
national systematised data collection tool that would create a minimum data set.
Unfortunately, a prevalence study is the only item from this list that has been included in
the Proposals.
Although we recognise that this review is being conducted by a legal body and reporting to
the Attorney-General, and therefore it will have a legal and policy focus and bias, we view
the national package of service and information supports as essential to underpin any legal
advances in this area. Therefore:
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COTA recommends that the Final Report of the Inquiry include proposals for:
a package of national support measures for elder abuse prevention and response
services; and
a national system of supported, ongoing data collection and analysis.
2. The ALRC discussion paper acknowledges that elder abuse is invisible in the laws and legal
frameworks pertaining to Social Security. The proposed DHS elder abuse strategy
(Proposal 10-1), while commendable, does not address this specific concern. It is important
that the National Plan (Proposal 2-1) includes strategies to specifically examine how Social
Security laws and legal frameworks can be amended to specifically identify and address
elder abuse.
More broadly than Human Services and Social Security, there is also an opportunity for
Commonwealth policy departments to increase awareness of staff about elder abuse,
review policies and programs for implications regarding elder abuse and ensure that future
policy development seeks to recognise and minimise the opportunities for elder abuse.
COTA recommends that the National Plan include strategies to examine and amend laws
and legal frameworks pertaining to Social Security to recognise and respond to elder
abuse.
Comments on Selected Proposals
In the following table we make additional comments on particular Proposals.
Proposal Comment
Proposal 2–1
A National Plan to
address elder abuse
should be developed.
(Supported)
COTA considers the development of a National Plan fundamental
to ensuring a coordinated, consistent response across
Commonwealth, state/territory and non-government
organisations to elder abuse.
Some key issues to be taken into account in the development of a
National Plan include:
a recognition of, exploration of and response to pervasive
ageism as a causal factor in elder abuse;
the need to develop a National Plan
o under the auspices of COAG processes to give it
appropriate weight and standing
o with the full involvement of all parties including
civil society groups, consumer representatives and
service providers
o recognising the full diversity of experience, needs
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Proposal Comment
and culture present among older people including
in regard to gender, sexual orientation, disability,
cultural and linguistic background, geographic
location, health status, economic status and
different stages of older life
o giving attention to the specific issues and needs
facing Aboriginal and Torres Strait Islander peoples
o that is more than a high level statement of intent,
but rather is a comprehensive plan of action with
accountability
o that is funded to succeed;
so much of the relevant legislation is State/Territory-based
and therefore it will be a challenging task to gain
alignment and harmonisation. Nonetheless the stakes are
very high for older people, each of whom should have an
equal right to the protection of the law and fit-for-purpose
policy responses on elder abuse no matter what
jurisdiction they live in;
some jurisdictions have higher standards in place in some
of the key functions, such as Powers of Attorney, and a
National Plan should establish current best practice as a
benchmark from which to go forward and avoid lowest
common denominator policy settings;
a potential for appraisal of State/Territory protections and
processes to support each jurisdiction in pursuing best
practice;
given the complexity and impact of the issue, it is
especially crucial that best practice policy and program
design and evaluation is employed, particularly identifying
and avoiding the significant potential for unintended
consequences that increase the risk of all forms of elder
abuse or neglect, or further disempower older Australians.
Proposal 2–2
A national prevalence
study of elder abuse to
be commissioned.
(Supported)
COTA welcomes this Proposal.
Some key issues that need to be taken into account in
implementing it are the need to:
take account of the familial nature of much elder abuse
that then leads to under reporting, and find and fund
innovative ways to conduct a study of prevalence that
safeguard older people;
take a comprehensive approach that captures data on
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Proposal Comment
perpetrators and context as well as the victim;
design research to take full account of population and
cultural diversity;
base the research on the WHO description of elder abuse,
but build into the study a strong learning and testing
component around the definition of elder abuse as a key
research outcome;
ensure that an ongoing regime for supported data
collection continues as an integrated part the Prevalence
Study, rather than undertaking a one-off baseline study.
Proposal 5–4 (Abridged
here)
Enduring documents
should be witnessed by
two independent
witnesses, one of whom
must be either a:
a) legal practitioner
b) medical
practitioner
c) justice of the
peace
d) registrar of the
Local/Magistrates
Court or
e) police officer
holding the rank
of sergeant or
above.
(Supported)
COTA’s main comment in regard to this Proposal relates to
access.
It is possible that the list of classes of witness referred to in
Proposal 5-4 is too narrow and should be expanded. There will be
many places in Australia where the witnesses referred to in the
Proposal will simply not be available, or where people will not
feel comfortable having such a document witnessed by, say, a
local police officer, even if one were available.
COTA suggests that more investigation goes into this Proposal
including considering expanding the remit of already existing
authorised witnesses in some jurisdictions who play this role in
other contexts, for example registration of sale of land
documents in the ACT.
Proposal 7–1
The Code of Banking
Practice should provide
that banks will take
reasonable steps to
prevent the financial
abuse of older
COTA sees this Proposal and others relating to banking and
superannuation as especially important.
The issue of 3rd party nominees is essential to address.
Effective responses must take account of a context of
generally low levels of financial literacy amongst older
people, and particularly older women;
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Proposal Comment
customers. The Code
should give examples of
such reasonable steps,
including training for
staff, using software to
identify suspicious
transactions and, in
appropriate cases,
reporting suspected
abuse to the relevant
authorities.
(Supported)
growing complexity in the operation of banking;
accelerating change of banking business practices and
product offerings;
a shift to online transactions;
a reduction in physical bank branch offices and numbers of
staff available to assist older customers in person or on
the telephone.
Banks must take a holistic approach to supporting older
consumers to feel confident in the conduct of their own business.
This could make a significant contribution to reducing the
vulnerability of some people to elder financial abuse.
Staff training and the alignment of on-the-ground performance
measures and business practices with the intentions set out in the
Code will be essential.
Proposal 8-1
State and territory
tribunals should have
jurisdiction to resolve
family disputes
involving residential
property under an
“assets for care”
arrangement.
(Supported)
COTA views ‘assets for care’ arrangements as both a very
important option for older people to choose for their own
wellbeing and a major risk environment for elder abuse.
Tribunals having jurisdiction to resolve disputes would be a major
step forward, but COTA also believes that much more attention
must be given to the prevention of disputes in the first place
through more widespread use of formalised, written agreements.
This is a complex and fraught area that will require cultural
change, education of older people and appropriate policy
incentives. One possible example of an incentive is the idea we
moot for investigation below (Proposal 10.1) regarding a
mandatory Family Agreement associated with Centrelink
assessment of Granny Flat Interest.
Alongside this legalistic approach, COTA argues that there needs
to be a stronger focus on family mediation to maintain
relationships or negotiate solutions within complex family
situations.
COTA reiterates our often-repeated view in this context and
others that the definition of family must be broad and inclusive
and can include friends or neighbours in an informal support role.
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Proposal Comment
Proposal 10-1
Department of Human
Services (Cth) should
develop an elder abuse
strategy to prevent,
identify and respond to
the abuse of older
persons in contact with
Centrelink.
(Supported)
Centrelink is ideally placed to detect and respond to possible
cases of elder abuse for people participating in the Social Security
system. This strategy will raise awareness of the issue of elder
abuse within the Department of Human Services and can provide
a useful overarching framework to guide the implementation of
initiatives to prevent, detect and respond to elder abuse.
A DHS strategy to reduce elder abuse will need to include the
implementation of:
processes which make it harder for a person to take
advantage of an older person, either inadvertently
through lack of knowledge or deliberately
o an example of this might be the possible
introduction of a mandatory requirement for a
formal, written Family Agreement prepared with
legal advice, as part of the assessment process for
a Granny Flat Interest case;
clear procedures for staff to report and respond to a
suspected case of elder abuse, including guidance on
appropriate responses to be taken by management and
frontline staff;
a process for ongoing monitoring or review of reported
cases of suspected abuse;
data protocols, tools collection and reporting on the
incidence of suspected elder abuse.
We also highlight the challenges for Centrelink staff to be able to
detect indicators of suspected elder abuse in a service delivery
system that is increasingly reliant on online interactions.
As part of the DHS Elder Abuse Strategy, consideration needs to
be given to:
protections for older people who have experienced
financial abuse to ensure that, as far as practical, they are
not further financially ‘penalised’ as a result of that abuse;
and
conducting a review of the effectiveness of the current
level of compliance checks undertaken by Centrelink with
regards to requests for records from payment nominees.
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Proposal Comment
Proposal 10 – 2
Centrelink policies and
practices should require
that Centrelink staff
speak directly with
persons of Age Pension
age who are entering
into arrangement with
others that concern
social security payment.
(Supported)
COTA supports this proposal as it will assist Centrelink staff to
identify any indicators of suspected elder abuse.
However, consideration will need to be given to:
the process for this interaction, as existing methods of
communication with Centrelink are problematic for many
vulnerable older people;
Centrelink staff also speaking directly with payment
nominees to ensure they understand their obligations and
identify any areas of concern, which may indicate risk of
for elder abuse.
COTA also supports consideration of third party nominees having
payments made into a trust account rather than their own
personal account.
Proposal 10-3
Centrelink
communications should
make clear roles and
responsibilities of all
participants to
arrangements with
persons of Age Pension
age that concern social
security payments.
(Supported)
Information on roles and responsibilities is critical and Centrelink
will need to ensure that they use a number of different methods
to communicate this message, in addition to proposed changes to
Centrelink forms. Special consideration needs to be given to
appropriate methods of communication for people from culturally
and linguistically diverse backgrounds and Aboriginal and Torres
Strait Islander people.
Proposal 10-4
Centrelink staff should
be trained further to
identify and respond to
elder abuse.
(Supported)
The importance of training cannot be overstated. It will need to
be supported with clear policy, procedures, tools and systems for
staff to identify, report on and respond to suspected elder abuse.
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Proposal Comment
Proposal 11-1
Aged care legislation should establish a reportable incidents scheme. The scheme should require approved providers to notify reportable incidents to the Aged Care Complaints Commissioner, who will oversee the approved provider’s investigation of and response to those incidents.
(Supported with caveat)
COTA supports the intention of this proposal to establish a reportable incidents scheme. However COTA does not support the scheme notifying the Aged Care Complaints Commissioner. The appropriate notification for such a scheme is the Department of Health, rather than the independent Commission. To impose such functions on the Commission could lead to confusion about its independence within the sector.
In addition, consideration should be given to ensuring that a reportable incidents scheme applies to all Commonwealth Funded Aged Care Programs, including those not currently listed under the Act, such as the Commonwealth Home Support Program.
Proposal 11-2 (Abridged
here)
The term ‘reportable assault’ in the Aged Care Act 1997 (Cth) should be replaced with ‘reportable incident’.
(Supported)
As with Proposal 11 -1, consideration should be given to ensuring similar provisions are included in all Commonwealth Funded Aged Care Programs, including those not currently listed under the Act, such as the Commonwealth Home Support Program to ensure a consistent approach across the entire aged care sector.
Proposal 11–4 (Abridged here)
There should be a national employment screening process for Australian Government funded aged care. The screening process should determine whether a clearance should be granted to work in aged care, based on an assessment of ….
AND
In Proposals 11-4 and 11-5, COTA strongly supports the introduction of a Working with Vulnerable People Card rather than a national employment screening process. This would provide the same outcome, however it would be applicable beyond Aged Care into working with children, people with a disability and potentially people with mental health issues.
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Proposal Comment
Proposal 11–5
A national database should be established to record the outcome and status of employment clearances.
(Supported)
See comment on 11.4
Proposal 11-7 (Abridged
here)
The Aged Care Act 1997 (Cth) should regulate the use of restrictive practices in residential aged care. The Act should provide that restrictive practices only be used….
(Supported)
While COTA supports this Proposal we note it may be more
appropriate for such regulation to be contained in subordinate
legislation, such as the Quality of Care Principles, to ensure
efficient monitoring.
Proposal 11–8
Aged care legislation should provide that agreements entered into between an approved provider and a care recipient cannot require that the care recipient has appointed a decision maker for lifestyle, personal or financial matters.
(Supported)
COTA supports the intention of this Proposal to ensure older Australians have the choice of whether they appoint a decision maker to act on their behalf should they become incapacitated.
We are concerned however that in the context of residential aged care, where higher levels of incapacity are reported than experienced in the community, the choice to not appoint a decision maker must be an informed one. Accordingly, we propose any adoption of this Proposal include an additional requirement that providers must also inform care recipients of what the consequences may be if there is no one appointed and they become incapacitated in regard to decision making.
This Proposal should also clarify that it is referring solely to Residential Aged Care. COTA is not aware of Home Care or Home Support agreements requiring this information.
Proposal 11-9 (Abridged
here)
COTA supports this Proposal, however we propose an amendment to Clause C to state “require NATIONALLY CONSISTENT training”.
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Proposal Comment
The Department of Health (Cth) should develop national guidelines for the community visitors scheme that…. (Supported)
Proposal 11-10
(Abridged here)
The Aged Care Act 1997 (Cth) should provide for an ‘official visitors’ scheme for residential aged care. Official visitors’ functions should be to inquire into and report on….
(Supported)
AND
Proposal 11-11 (Abridged here)
Official visitors should be empowered to….
(Supported)
COTA considers that the scope of Proposals 11-10 & 11-11 should be broadened to include multi-purpose facilities and transition care facilities, not just residential care facilities.
Ends